Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

In my last post, I discussed the significance of the new US DOJ policy, effective July 11, that creates a presumption that all federal law enforcement agencies — the FBI, the DEA, ATF, and all the rest, will record interrogations of suspects. This will put these federal agencies on par with the several states and many hundreds of state and local departments that have recorded interrogations for years, as a matter of course.

I commented that, without access to the DOJ memorandum itself, there was no way to know whether the new policy would require recording of the whole interrogation, or just part of it (usually, the part that shows a confession, but not what lead up to it). I promised to post again when I had more information.

The full DOJ memorandum is now public, and it requires that the agency records the full interrogation: not just the confession, but the whole session. Here’s what the memorandum says:

I. g. Scope of Recording. Electronic recording will begin a soon as the subject enters the interview area or room and will continue until the interview is completed.

For proponents of recording interrogation, this is good news. A partial recording could only give a partial picture of what went on in the interrogation room. At worst, a partial recording could be downright misleading; at the very least, a recording that only contained the confession at the end of the interrogation would tell us nothing about the context — about how the police obtained the interrogation. So the Scope of Recording requirement is a very important part of an effective recording system.

This is a significant fact. But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.” This is how the world looks, whether on television (think ofCSIand its many clones) or in any news source. But this view doesn’t reflect the real world. As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6). Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA. And that difference seems to be increasing. In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically. In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent. The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations. (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development. While some exonerations have always come about with law enforcement cooperation, this was not the trend. Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past. According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not. That idea appears to be sinking on a much wider basis. And that is all to the good.

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon. On January 10, the U.S. Department of Justice (DOJ) and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs. But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything. Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972. (A quick primer on the Act is here.) It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST). Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction. At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere. See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee? Will the government adopt these recommendations? Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world. I regularly turn to their model policy and training documents when working on those issues for police agencies. So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach. It is based on work at a summit of people from IACP, DOJ, and a host of experts. In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them. Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation. It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now. A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David. Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh. Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed. With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans. The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University. (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.” Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one. In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle. Readers of my bookFailed Evidence: Why Law Enforcement Resists Sciencecan get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site). Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.” Some of these suspects who allegedly confessed said that they had told Scarcella nothing. Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man. According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here. As readers of the Failed Evidence blog know, CIUs are dedicated units within prosecutors’ offices, just like homicide or fraud units, that take on the task of re-opening old convictions now in doubt. The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places. In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created. But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all. We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

I’ve written before about Conviction Integrity Units (CIUs) in prosecutors’ offices (take a look here and here). CIUs are groups of lawyers within prosecutors’ offices — just like a major crimes unit or a narcotics unit, though probably much smaller than either of these — with the job of investigating questionable past convictions from that same office. CIUs do this when presented with evidence that raises real doubts about the guilt of a convicted defendant in one of the office’s past cases.

The first CIU was established by Dallas DA Craig Watkins, who had then just been elected against a backdrop of more than 20 exonerations of people wrongfully convicted under the past leadership of his agency. (The latest story about Watkins and the exoneration of wrongfully convicted people in Dallas — examining a fascinating twist on exonerations — is here.) Just a couple of years later, Patricia Lykos, then the newly elected DA in Houston, established a CIU in her office. From Texas, the idea has begun to spread.

Both the Dallas and Houston CIUs have one thing in common: they were launched by new DAs to investigate cases that originated under former administrations. No doubt this is easier than investigating mistakes that have happened under one’s own watch.

That’s what makes this story out of the Brooklyn DA’s office so interesting. Charles Hynes, the elected DA of Brooklyn, established a CIU that will be looking at cases in which prosecutors obtained convictions during his own six terms in office. For example, at the end of March, David Ranta, 58, was released after spending 23 years in prison for the killing of a rabbi in Williamsburg, Brooklyn. The original conviction came under Hynes’ leadership; when Ranta was released, Hynes gave credit for the release to his CIU.

CIUs accomplish something very fundamental: they make the task of uncovering mistakes in the justice system into a routine operation. On the other hand, as readers of this blog have correctly pointed out, CIUs are a lot like internal affairs divisions in police departments: the DAs are investigating themselves. This is easier to credit when the head of the office is not the same person who was at the helm when the mistakes were made. It is also why CIUs are still rare when the head of the office has been serving a long time — long enough to be the one responsible for the mistakes under investigation.